Keith Mack
Common law conspiracy is a crime that involves two or more people planning to commit a criminal act. It is a complex area of law, with many nuances, and the details can vary across jurisdictions. Conspiracy is a partnership in crime and is considered complete when an agreement is made, although some jurisdictions also require an overt act to be taken in furtherance of the conspiracy. The crime of conspiracy was created to address the dangers posed to society by groups of people joining forces to commit crimes, and it allows investigators to prosecute the leaders of criminal organisations.
| Characteristics | Values |
|---|---|
| Nature of crime | Planning with other people to engage in criminal activity |
| Agreement | Must be an agreement between two or more people to violate the law |
| Intent | Intent to agree and intent to accomplish an illegal objective |
| Act | At least one "overt act" must be taken in furtherance of the conspiracy |
| Renunciation | A defense in some jurisdictions, where a conspirator can renounce the conspiracy and thwart the crime |
| Jurisdiction | Jurisdictions vary in their approach to conspiracy, with some requiring knowledge of illegality and others not |
| Punishment | Varies by jurisdiction, with some imposing penalties related to the target crime, and others treating conspiracy as a misdemeanor |
| Completion of crime | In some jurisdictions, the charge of conspiracy merges into the completed crime |
| Withdrawl | Withdrawal is generally not a defense to a charge of conspiracy |
| Co-conspirators | Each co-conspirator is liable for any other crime committed by another co-conspirator if it was in furtherance of the conspiracy |
| Unindicted co-conspirators | Prosecutors may choose not to charge a co-conspirator for a variety of reasons, including grants of immunity and evidentiary concerns |
| Common law offences | Seen as vague and open to development by courts, leading to the Criminal Law Act 1977 abolishing most common law varieties of conspiracy |
| Exceptions | Conspiracy to defraud and conspiracy to corrupt public morals or outrage public decency are still offences under common law |
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What You'll Learn
Common law conspiracy is a misdemeanor
At common law, a conspiracy is completed as soon as an agreement between one or more people is made. However, most jurisdictions today also require that there must be at least one ""overt act" taken in furtherance of the conspiracy by at least one of the conspirators. The "overt act" is some affirmative act done by one or more of the co-conspirators. The act demonstrates that the agreement has advanced from merely talk to action. Once the overt act occurs, the crime of conspiracy is "complete" and can be charged.
There is some debate as to whether or not a defendant can be convicted for conspiracy if they did not know that what they were conspiring to do was illegal. Some jurisdictions do not criminalize a conspiracy unless the defendant knew that the object of the conspiracy was a crime. However, other jurisdictions hold that, since ignorance of the law is generally not a defense to a criminal charge, conspiracy is no exception.
The crime of conspiracy was created to address the inherent dangers posed to society when people come together and join forces to commit criminal acts. An important feature of the conspiracy statute is that it enables investigators to get beyond the first layer of visible members to find and prosecute the leaders of a criminal scheme or organization.
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Conspirators can be charged separately from the substantive offence
The crime of conspiracy is committed when two or more people plan to engage in criminal activity. This is a complex area of law, with many nuances. The ""agreement is the most important element of a conspiracy. At common law, a conspiracy is complete as soon as an agreement between one or more people is made. However, most jurisdictions today also require at least one "overt act" to be taken in furtherance of the conspiracy.
Conspiracy laws were created to address the dangers posed to society when people join forces to commit criminal acts. It is designed to deter potential criminals from becoming organised and to ensure that all those who played active parts in criminal activity are held accountable.
An important feature of conspiracy law is that it enables investigators to move beyond the first layer of visible members to find and prosecute the leaders of criminal schemes or organisations. This is particularly useful in the case of organised crime, where there may be a chain conspiracy with many links, such as in the case of a conspiracy to manufacture and distribute a controlled substance.
However, there is a split in opinion on whether both parties must have "guilty minds". Under the "rule of consistency" or "bilateral" approach, there must be two guilty minds, and both parties must sincerely agree to commit the crime. In a two-person conspiracy, if one co-conspirator is acquitted, the other cannot be guilty of conspiracy. However, if they are tried separately, the second co-conspirator can still be charged with conspiracy.
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The Model Penal Code's unilateral approach
Conspiracy is a crime involving an agreement between two or more people to commit a crime. At common law, conspiracy is a misdemeanour, but modern statutes differ in the punishments they warrant for conspiracy. The Model Penal Code, however, takes a more stringent line on conspiracy by adopting a unilateral approach.
According to the Model Penal Code's unilateral approach, a conviction for conspiracy does not require an agreement between at least two people. Instead, a defendant can be convicted of conspiring to commit a crime as long as they agreed to take part in it. This means that, under the Model Penal Code, a defendant can be convicted of conspiracy even if they made an agreement with an undercover police officer, a co-conspirator who is eventually acquitted, or a co-conspirator against whom the charges are eventually dismissed. This is because, in each of these cases, there was no plurality in the agreement, and the defendant had effectively agreed with nobody.
The Model Penal Code also differs from common law in its treatment of withdrawal from a conspiracy. At common law, withdrawal is generally not a defence to a charge of conspiracy, and a defendant can be convicted of conspiracy even if they have withdrawn from it. However, the Model Penal Code allows a defendant to avoid a conviction if they can prove that they completely and voluntarily withdrew from the conspiracy and prevented its success, usually by contacting the police.
The Model Penal Code also calls for the same punishment for conspiracy as is required for the most serious crime the parties agree to commit. In contrast, some jurisdictions impose penalties that are related to, but less than, the penalties for the target crime.
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The rule of consistency or the bilateral approach
The rule of consistency, or the bilateral approach, is a concept in the law of conspiracy that requires the presence of two guilty minds. In other words, for a conspiracy to be established, there must be an agreement between at least two people to commit a crime, and both parties must sincerely agree to commit the crime. This approach ensures that both parties to the conspiracy are held accountable and that mere talk or discussion does not constitute a conspiracy.
The bilateral approach is based on the idea that conspiracy requires an agreement between two or more people to engage in criminal activity. This is often referred to as the "plurality requirement" for conspiracy, meaning that there must be multiple participants in the agreement. Without an agreement, there can be no conspiracy, and if one co-conspirator is acquitted or not charged, the other co-conspirator cannot be found guilty of conspiracy alone. This rule of consistency ensures consistency in the application of conspiracy charges and convictions.
The bilateral approach is contrasted with the unilateral approach, which has been adopted by the Model Penal Code and some states. Under the unilateral approach, only one person needs to have a guilty mind or the requisite mens rea. This means that a person can be convicted of conspiracy even if they were conspiring with an undercover police officer or a co-conspirator who is later acquitted or has charges dismissed. The unilateral approach focuses on the individual's culpability rather than the agreement between multiple parties.
The debate between the bilateral and unilateral approaches centres around the definition of conspiracy and the requirements for conviction. The bilateral approach emphasises the agreement between multiple parties, while the unilateral approach focuses on the intent and actions of the individual defendant. The Model Penal Code's unilateral approach allows for more flexibility in prosecuting conspiracies, especially in situations where one party may be an informant or have changed their level of involvement.
The rule of consistency, or the bilateral approach, aims to strike a balance between ensuring conspiracy convictions are consistent and holding all co-conspirators accountable. By requiring multiple participants with guilty minds, this approach helps to establish a clear agreement to engage in criminal activity and ensures that conspiracies are not too easily formed or prosecuted. This approach is particularly relevant in cases where there may be questions of entrapment or uncertainty about the level of involvement of certain parties.
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The Pinkerton Rule
The Supreme Court held that if an overt act that is an essential part of a conspiracy is committed by one conspirator, then the same or other acts in furtherance of the conspiracy should be attributable to the other conspirators for the purpose of holding them responsible for the substantive offense(s). This is similar to the rule of aiding and abetting, which makes a defendant a principal when they consciously share in any criminal act, whether or not there is a conspiracy. However, aiding and abetting has a broader application than Pinkerton liability, which is more narrow in scope.
At common law, conspiracy is a misdemeanor, and the crime was previously capable of infinite growth, able to accommodate any new situation and criminalize it if the level of threat to society was high enough. However, following the Law Commission Report No. 76 on Conspiracy and Criminal Law Reform, the Criminal Law Act 1977 abolished all common-law varieties of conspiracy except for two: conspiracy to defraud, and conspiracy to corrupt public morals or to outrage public decency.
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Frequently asked questions
Common law conspiracy is a crime involving two or more people who agree to commit a crime and then act on that agreement.
The elements of common law conspiracy are that there must be two or more people who intentionally make an agreement to violate federal law or defraud the government, and then act on that agreement.
The punishment for common law conspiracy can vary depending on the jurisdiction. In some cases, the penalties are related to the target crime but are less severe. However, the Model Penal Code calls for the same punishment as the most serious crime agreed to be committed.
There is debate on this issue. Some jurisdictions hold that a defendant can be convicted of conspiracy even if they did not know the act was illegal, as ignorance of the law is generally not a defence. However, other jurisdictions require that the defendant knew the object of the conspiracy was a crime.
Yes, a person can be prosecuted and convicted for the underlying crime and conspiracy to commit that crime. The crime of conspiracy is distinct from the substantive offence and can be charged separately.
